44Sri Lanka Law Reports 1 Sri L.R
REPUBLIC OF SRI LANKACOURT OF APPEALRANJITH SILVA, J.
SISIRA DE ABREW, J.
CA 15/2000HC GALLE 1709JANUARY 24, 28, 29, 2008
Murder – failure to consider principles governing cases of circumstantialevidence ~ Fatal? Should the trial Judge state the principles governingcircumstantial evidence in the judgment? Dock statement – importance?Common intention? Criminal Procedure Code – S217, S229, S245.
The 1st and 2nd accused were indicted for committing the murder of Y and C- and were convicted for both offences and sentenced to death.
In appeal it was contended that
The trial Judge treated the case as a case based on direct eye witnessaccount where in fact this was a case based on circumstantialevidence.
Premaratne v Republic of Sri Lanka
That the trial Judge has not laid down all the principles of law in hisjudgment.
That, the rejection of the dock statement was bad in law.
That the accused did not share the common murderous intention.
The learned trial Judge had observed that the evidence of the witnessin this case can be categorized as eye witness account and not basedon circumstantial evidence, but the learned trial Judge had alsoobserved that the prosecution had led circumstantial evidence. Theabove observation had not caused prejudice to the accused.
Per Sisira de Abrew. J.
"In a trial by a judge without a jury, the judge cannot be expected to lay downall the principles of law in his judgment but this does not mean that the trialjudge can ignore the legal principles relevant. If the appellate Court is of theopinion that the case had been proved beyond reasonable doubt the appellateCourt will not set aside the conviction on the ground that the judge failed to laydown the principles of law in the judgment".
In a trial by a judge of the High Court without a jury it is significant thatthere are no such provisions similar to S217. There is no requirementsimilar to S229 that he should lay down the law which he is to beguided. The reason being that the law takes far granted that a Judgewith a trained legal mind is well possessed of the principles of law hewould apply.
A satisfactory way to arrive at a verdict of guilt or innocence is toconsider aN the matters before the Court adduced whether by theprosecution or by the defence without compartmentalizing and askhimself whether as a prudent man in the circumstances of theparticular case, he believes the accused guilty or not guilty.
In considering all the matters before Court, it is seen that, the bothaccused had committed the murder of the two deceased persons -there was common murderous intention.
APPEAL from the judgment of the High Court of Galle.
Cases referred to:
Dayananda Lokugalappathy v State – 2003 3 Sri LR 362 at 392
James Silva v The Republic of Sri Lanka 1980 2 Sri LR 167 at 176.
Dr. Ranjith Fernando for appellant.
Kapila Widyaratne DSC for the Republic of Sri Lanka.
46Sri Lanka Law Reports 1 Sri L.R
February 29, 2008SISIRA DE ABREW, J.
A.J.M. Rathnasiri Jayasundara alias Bandara, the 1 st accused 01and K.M. Premarathne, the 2nd accused appellant were indicted inthe High Court of Badulla for committing the murder of Yasarathneand the murder of Chandrasena who was a grade six student. The1st accused was tried in absentia while the 2nd accused wasdefended by a lawyer. After trial the learned trial judge convictedboth accused for both offences and sentenced to death. Thisappeal, by the 2nd accused appellant, is against the said convictionand the said sentence. The facts of the case may be brieflysummarized as follows.10
The unfortunate incident in this case took place on 1st ofDecember 1988 which was a curfew day declared by the JanathaVimukthi Peramuna (JVP). Around 6.30 p.m. on the fateful dayboth the 1st accused and 2nd accused appellant came to the houseof Kirihathana and consumed one bottle of toddy which was withKirihathana. The 2nd accused appellant, at this time apparentlyaddressing Kirihathana told that he kept a gun on the pile of timberstacked in one of the rooms of Kirihathana's house. After they left,Kirihathana heard somebody shouting in the following language;"Ammo Ammo I am finished." When Kirihathana went to see what 20it was, the 1st accused, armed with a gun, threatened him in thefollowing language: "If you tell anybody your entire family would bekilled." At this time the 2nd accused appellant was seen in thecompany of the 1st accused. Then both accused chased afterKirihathana preventing him from proceeding further in the directionthat he heard the cries of distress. As a result of this behaviour ofboth accused, Kirihathana who could not see what was happeningor what has happened went and locked himself up inside his house.Following morning when he came with the police he saw two deadbodies about 75 yards away from the place where the two accused 30threatened him in the previous evening. Kirihathana had neverseen the deceased persons prior to this incident.
On hearing a wailing cry of a human being around 6.30 p.m.on the fateful day Raman Wijendran (hereinafter referred to asRaman) stepped out of his house to make inquiries about the said
Premaratne v Republic of Sri Lanka
CA(Sisira de Abrew, J,)‘ 47
human voice i.e. "do not assault me." He then, saw two malepersons lying fallen at the edge of the Village Council Road (VCRoad) and the two accused standing near the fallen men. Thedistance between the two accused was 3 to 4 feet. When he wasinquiringly looking what was happening, the 1st accused, who was 40armed with a gun, using filthy language, questioned as to why hecame and threatened to kill him and to set fire to his house.Following morning Raman saw tow dead bodies at the afore-mentioned place i.e. the edge of the VC Road.
Around 7.00 to 7.30 p.m. on the fateful day Jamis, who wasliving about 1/2 mile away from the place where the two dead bodieswere found in the following morning, opened the door as somebodywas knocking on the door. Both accused then entered the house.When the 1st accused requested his gun, he gave an iron pipe.Following morning he saw two dead bodies about 1/2 mile away 50from his house.
On behalf of the 2nd accused appellant following groundswere urged as militating against the maintenance of the conviction.
Learned trial Judge erred by considering the matter as acase based on direct eye witnesses account when in factit was a case based on circumstantial evidence.
There was no judicial evaluation of the circumstantialevidence .
Learned trial Judge erred by failing to consider the effect
of the dock statement.60
The 2nd accused appellant did not share commonmurderous intention with the 1st accused and as such theconviction of the 2nd accused appellant cannot bepermitted to stand.
I shall now advert to these grounds. Learned Counsel for theappellant drew our attention to page 107 of the brief and contendedthat the learned trial judge had treated the case as a case basedon eye witnesses account when in fact this was a case based oncircumstantial evidence. The learned trial judge at page 107 of thebrief observed that the evidence of the witnesses in this case can 70be categorized as eye witnesses’ account and not as circumstantial
48Sri Lanka Law Reports 1 Sri L.R
evidence. But the learned trial judge, at the same page, observedthat the prosecution had led circumstantial evidence. He furtherobserved that the witnesses in this case were almost witnesses.Raman stated, in his evidence, that he could see the scene ofmurder when he opened his door. He opened the door since heheard somebody shouting 'do not assault me.’ When he steppedout he saw two people lying fallen and the two accused standingnear the fallen people. Thus it appears if Raman stepped out of hishouse one or two seconds before he heard the said cries of 80distress he would have witnessed the deceased persons beingassaulted. In view of these matters, the aforementionedobservations of the learned trial judge have not caused prejudice tothe accused. Therefore, we are unable to agree with the firstground urged by the learned Counsel.
I shall now advert to the second ground urged by the learnedCounsel for the 2nd accused appellant. Learned Counselcontended that the conviction of the 2nd accused appellant couldnot be sustained as the learned trial judge had failed to considerthe principles governing cases of circumstantial evidence. It is true gothat the learned trial judge failed to observe the principlesgoverning cases of circumstantial evidence. Should the trial judgealways state the said principles in his judgment? In considering thisquestion, I must not forget the fact this was a trial by a judge andnot by a jury. In a trial by a jury, at the commencement of the trial,the judge has to inform the members of the jury of their duties. Atthat stage the judge also directs them briefly on the presumption ofinnocence, the burden of proof and other principles of law as maybe relevant to the case. Vide section 217 of the Criminal ProcedureCode (CPC). This is because jurors are ordinary laymen. It is 100noteworthy to mention here that Attorney-at-law cannot serve asjurors. Vide Section 245 of the CPC. Thus the law presumes thatjurors do not possess knowledge in law. This appears to be thereason that the judge is expected to direct the jurors on the relevantprinciples of law in both his opening address and in summing up.
The judge who has a trained legal mind cannot be equated to ajuror. In this connection I would like to quote a passage from thejudgment of Justice Kulathilake in the case of DayanandaLokugalappathy v The Stated) at 392: "In a trial by a Judge of the
Premaratne v Republic of Sri Lanka
CA(Sisira de Abrew. J.)
High Court without a jury it is significant that there are no such noprovisions similar to section 217 of the Act, for example to set forththe basic principles of criminal law, i.e. the presumption ofinnocence, the burden of proof etc. We do not see any requirementsimilar to section 229 that he should lay down the law which he isto be guided. The reason being that the law takes for granted thata Judge with a trained legal mind is well possessed of the principlesof law, he would apply." Considering all these matters I hold theview that in a trial by a judge without a jury, judge cannot beexpected to lay down all the principles of law in his judgment. Butthis does not mean that the trial judge can ignore the legal 120principles relevant to the case in deciding the issue before him. Ifthe appellate court is of the opinion that the case had been provedbeyond reasonable doubt, the appellate court will not set aside theconviction on the ground that the judge had failed to lay down theprinciples of law in his judgment. If a conviction is set aside on thesaid ground such a course would lead to deterioration ofadministration of justice. Considering all these matters, I reject the2nd ground urged by the learned Counsel as there is no merit in thesaid ground.
Learned Counsel for the 2nd accused appellant contended 130before us that the learned trial judge erred by failing to consider theeffect of the dock statement. Contention of the learned Counselwas that the rejection of the dock statement by the learned trialjudge was wrong. He further contended that the learned trial judgehad compared the dock statement with the prosecution evidence.
In order to find out whether the accused is guilty of the offence ornot, can the trial Judge consider the dock statement in isolation? Ina straight forward case of murder by shooting where the case isbased on several items of evidence such as the evidence of eyewitnesses; the evidence of the police officer to whom the gun was uohanded over by the accused; the evidence of the GovernmentAnalyst who confirms that the empty cartridge found at the sceneof offence had been discharged from the gun handed over by theaccused to the Police and corroborates the eye witnessesregarding the distance between the accused and the deceased atthe time of firing; and the medical evidence which confirms thedeceased died of gun shot injuries, can the trial Judge ignore theprosecution evidence and acquit the accused when he denies the
50Sri Lanka Law Reports 1 Sri L.R
incident from the dock? In such a case can the trial judge considerthe dock statement in isolation, accept the same and reject the istprosecution case? If Court adopts such a course, will it not lead tomockery of justice instead of administration of justice? In my view,in considering the question whether the dock statement should beaccepted or rejected the proper course is to consider the bothprosecution and defence evidence. This view is supported by theopinion expressed by Justice Rodrigo in the case of James Silva vThe Republic of Sri Lanka<2) at 176 wherein His Lordship remarkedthus: "A satisfactory way to arrive at a verdict of guilt or innocenceis to consider all the matters before the Court adduced whether bythe prosecution or by the defence in its totality without 16Ccompartmentalizing and, ask himself whether as a prudent man, inthe circumstances of the particular case, he believes the accusedguilty of the charge or not guilty." Considering all these matters, Ireject the contention of the learned Counsel as there is no merit init.
Learned Counsel further contended that the 2nd accusedappellant did not share common murderous intention with the 1staccused and therefore the conviction of the 2nd accused appellantcould not be sustained. I now turn to this contention. Soon beforethe crises of distress heard by Kirihathana, both accused came to 17cKirihathana's house and the 2nd accused appellant told that hekept the gun on the pile of timber. Soon after the said cries ofdistress Kirihathana saw both accused together and the 1staccused was armed with a gun. There was no any other personpresent at this time. Both accused chased away Kirihathanapreventing him from proceeding further in the direction that heheard the cries of distress. Following morning Kirihathana saw twodead bodies 75 yards away from the place where the two accusedwere standing in the previous evening. When Raman opened hisdoor on hearing a wailing cry of a human being i.e. "do not assault 180me" he saw both accused standing there and two persons lyingfallen near them. Raman was chased away by the two accusedwhen he was looking at the place where two men were lying fallen.Following morning he saw two dead bodies at this place. Around7.00 to 7.30 p.m. on the fateful day both accused came to Jamis'shouse and demanded his gun. Considering all these matters I hold
Nandana v Attorney-General
the view that both accused had committed the murder of twodeceased persons. I am therefore unable to agree with thecontention of the learned Counsel for the 2nd accused appellantthat the 2nd accused appellant did not share common murderous 190intention. When the evidence led at the trial is considered I hold theview that the prosecution had proved the case beyond reasonabledoubt. For the above reasons I affirm the conviction and thesentence of the 2nd accused appellant and dismiss this appeal.
SILVA, J. – I agree.
PREMARATNE v. REPUBLIC OF SRI LANKA